SEC Whistleblower Protections: Anonymity
Another one of the SEC whistleblower protections is anonymity. Under the SEC whistleblower program, “anonymity” and “confidentiality” are different SEC whistleblower protections and have different meanings. With one main exception, SEC whistleblower anonymity means that no one knows the whistleblower’s identity other than the whistleblower and his or her lawyer. Not even the SEC knows the whistleblower’s name or identity.
There is no restriction on the types of SEC whistleblower cases in which someone can proceed anonymously.
A Lawyer Is Required To Claim SEC Whistleblower Anonymity
Proceeding anonymously requires that the whistleblower be represented by an SEC whistleblower lawyer. The SEC whistleblower rules specifically state that in order to proceed anonymously, “You must have an attorney represent you in connection with both your submission of information and your claim for an award.” (Rule 21F-7(b)(1).)
The name and contact information of the SEC whistleblower attorney must be provided to the SEC when the attorney submits his or her client’s original information to the SEC. (Rule 21F-7(b)(1).) There are additional SEC whistleblower rules and procedures that an SEC whistleblower lawyer has to follow when submitting a client’s information anonymously.
For these reasons, individuals who are thinking about proceeding anonymously should consider hiring a lawyer from a reputable SEC whistleblower law firm at the outset, before they submit their information to the SEC.
Exception: Getting An SEC Whistleblower Award
The SEC does not want to give out SEC whistleblower awards without knowing that they are paying the correct people. This makes sense, as it protects someone who is entitled to an SEC whistleblower reward from having their award payment misdirected.
The SEC whistleblower rules mandate that “Before the Commission will pay any award to you, you must disclose your identity to the Commission.” In addition, an award recipient’s identity must be verified by the SEC. (Rule 21F-7(b)(3).)
These rules refer only to the actual payment of an award to the whistleblower. Notably, the rules do not say that anonymous whistleblowers have to reveal their identities when they apply for their awards, or if their claims for awards are denied.
Possible Exception: Court Cases
It is also possible that in a courtroom litigation, a judge might order the SEC to produce documents or information to the defendant(s). However, it is common for defendants to settle with the SEC during the SEC’s investigation, before any case is filed in court. In such situations, the issue of disclosing a whistleblower’s identity would most likely not arise.
Far fewer SEC investigations end up as court cases. In SEC whistleblower cases that do end up in court, a judge might decide not to order the SEC to turn over the documents or information. Even if a judge does order the SEC to turn over the documents or information, if the whistleblower is anonymous, typically the SEC would not be able reveal his or her identity because the SEC itself does not know who the whistleblower is. In such cases, the documents or information that the SEC turns over would likely refer to the whistleblower simply as “anonymous” or something similar.
As mentioned, SEC whistleblower anonymity and confidentiality are different protections. For information about what “confidentiality” means in the context of the SEC whistleblower program, click here.
Potential whistleblowers with questions about SEC whistleblower anonymity should look up the SEC’s anonymity rules themselves and/or consult with an experienced SEC whistleblower lawyer.